United States v. Christensen

The two-step process to determine if the crime-fraud exception applies to potentially privileged materials requires: (1) a factual basis adequate to support a good faith belief by a reasonable person that in camera review may reveal evidence to establish the claim that the crime-fraud exception applies, and (2) an in camera review to determine privilege, and if shown, whether the crime-fraud exception applies.

Anthony Pellicano operated a private investigation company called Pellicano Investigative Agency (“PIA”), which often conducted investigations illegally. Pellicano bribed several individuals in areas such as law enforcement, telecommunications, and software development to assist Pellicano in conducting his investigations. Eventually Pellicano was investigated by the Federal Bureau of Investigation (“FBI”) after Pellicano attempted to intimidate a reporter. Pellicano and five other individuals were charged with several crimes under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), along with charges such as wiretapping, computer fraud, and conspiracy offenses. The case was handled through two separate jury trials from which each individual received convictions. Pellicano and the other individuals appealed, arguing a multitude of issues. The Ninth Circuit consolidated the cases and “address[ed] many of the issues in a concurrently filed memorandum disposition.” On appeal, one of the main issues the panel considered was whether recordings Pellicano had between him and Terry Christensen, an attorney who hired Pellicano to investigate the ex-wife of Christensen’s client for a child support suit, were protected through attorney-client privilege. The panel evaluated the district court’s admission of the recordings using the process from United States v. Zolin, which determines “whether the crime-fraud exception applies to potentially privileged materials.” The first step requires “‘a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.” The second step requires the court to conduct an in camera review to determine privilege, and if shown, whether the crime-fraud exception is applicable. The panel found that very little of the recordings were privileged, and that any error was harmless given the proportion to the complete recordings. AFFIRMED in Part, VACATED in Part, and REMANDED.